Add S13-p, amd SS141, 217, 205, 220 & 232, Work Comp L
Authorizes as a pilot program certified nurse practitioners to provide care and treatment to injured employees pursuant to the provisions of the workers' compensation law; establishes a nurse practitioner committee to regulate the practice of nurse practitioners under such law; makes it a misdemeanor to violate provisions relating to fees which may be collected by nurse practitioners.
STATE OF NEW YORK
________________________________________________________________________
3908
2009-2010 Regular Sessions
IN SENATE
April 3, 2009
___________
Introduced by Sen. DUANE -- read twice and ordered printed, and when
printed to be committed to the Committee on Labor
AN ACT to amend the workers' compensation law, in relation to authoriz-
ing as a pilot program certified nurse practitioners to provide
certain care and treatment to injured employees; and providing for the
repeal of such provisions upon expiration thereof
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The workers' compensation law is amended by adding a new
2 section 13-p to read as follows:
3 § 13-p. Care and treatment of injured employees by duly certified
4 nurse practitioners. 1. An injured employee injured under circumstances
5 which make such injury compensable under this article, when care is
6 required for an injury which consists solely of a condition which may
7 lawfully be treated by a nurse practitioner in accordance with section
8 sixty-nine hundred two of the education law may select to treat him or
9 her, any duly registered, licensed and certified nurse practitioner of
10 the state of New York, authorized by the chair to render nurse practi-
11 tioner care as provided in this section. If the injury or condition is
12 one which is outside the limits prescribed by the education law for
13 treatment or care by such nurse practitioner, such nurse practitioner
14 shall so advise the injured employee. A nurse practitioner certified
15 pursuant to section sixty-nine hundred ten of the education law, who is
16 desirous of being authorized to render nurse practitioner care under
17 this section shall file an application for authorization under this
18 section with the nurse practitioner committee. In such application he
19 or she shall agree to refrain from subsequently treating for remunera-
20 tion, as a private patient, any person seeking treatment from such nurse
21 practitioner in connection with, or as a result of, any injury compensa-
22 ble under this chapter, if he or she has been removed from the list of
23 nurse practitioners authorized to render nurse practitioner care under
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03859-01-9
S. 3908 2
1 this chapter, or if the person seeking such treatment has been trans-
2 ferred from his or her care in accordance with the provisions of this
3 section, which agreement shall run to the benefit of the injured person
4 so treated and shall be available to him or her as a defense in any
5 action by such nurse practitioner for payment for care or treatment
6 rendered by a nurse practitioner after he or she has been removed from
7 the list of nurse practitioners authorized to render nurse practitioner
8 care under this section, or after the injured person was transferred
9 from his or her care in accordance with the provisions of this section.
10 The nurse practitioner committee if it deems such nurse practitioner
11 duly qualified shall recommend to the chair that such nurse practitioner
12 be authorized to render nurse practitioner care under this section. Such
13 recommendations shall be advisory to the chair only and shall not be
14 binding or conclusive upon him or her. The chair shall prepare and
15 establish a schedule for the state, or schedules limited to defined
16 localities, of charges and fees for nurse practitioner treatment and
17 care delivered by a treating nurse practitioner under this section, to
18 be determined in accordance with and to be subject to change pursuant to
19 rules promulgated by the chair. Before preparing such schedule for the
20 state or schedules for limited localities, the chair shall request the
21 nurse practitioner committee to submit to him or her a report on the
22 amount of remuneration deemed by such committee to be fair and adequate
23 for the types of nurse practitioner care and treatment to be rendered
24 under this section, but consideration shall be given to the view of
25 other interested parties, the amounts payable by the employer for such
26 treatment and services shall be the fees and charges established by such
27 schedule.
28 2. No claim for nurse practitioner treatment or care made pursuant to
29 this section shall be valid and enforceable as against the employer or
30 employees unless within forty-eight hours following the first treatment
31 the nurse practitioner giving such care or treatment furnished to the
32 employer and directly to the chair a preliminary notice of such injury
33 and treatment, and within fifteen days thereafter a more complete report
34 and subsequent thereto progress reports as requested in writing by the
35 chair, board, employer or insurance carrier, at intervals of not less
36 than three weeks apart or at less frequent intervals if requested on
37 forms prescribed by the chair. The board may excuse the failure to file
38 such notices within the designated periods when it finds it to be in the
39 interest of justice to do so. Upon receipt of the notice provided in
40 this subdivision, the employer shall be entitled to have the claimant
41 examined by a qualified physician at a place reasonably convenient to
42 the claimant and in the presence of the claimant's nurse practitioner,
43 and the refusal of the claimant to submit to such examination at such
44 time or times as may reasonably be necessary in the opinion of the board
45 shall bar the claimant from recovering compensation, for any period
46 during which he or she has refused to submit to such examination.
47 3. Fees for nurse practitioner services rendered pursuant to this
48 section shall be payable only to a duly authorized nurse practitioner as
49 defined in this section, or to the agent, executor or administrator of
50 the assets of such nurse practitioner, including a physician associated
51 with such nurse practitioner. No nurse practitioner rendering treatment
52 to a compensation claimant pursuant to this section shall collect or
53 receive a fee from such claimant within this state, but shall have
54 recourse for payment only to the employer under the provisions of this
55 section.
S. 3908 3
1 4. Whenever his or her attendance at a hearing is required, the nurse
2 practitioner of the injured employee shall be entitled to receive a fee
3 from the employer in an amount to be fixed by the board, in addition to
4 any fee payable under section eight thousand one of the civil practice
5 law and rules.
6 5. The provisions of subdivisions one and three of section thirteen-g
7 of this article with respect to the conditions under which a hospital,
8 physician or self-employed physical or occupational therapist may
9 request payment or arbitration of a bill, or under which an award may be
10 made for payment of such bill, shall be applicable to bills rendered by
11 a nurse practitioner for services rendered to an injured employee pursu-
12 ant to this section. If the parties fail to agree as to the nurse prac-
13 titioner care rendered under this section to a claimant such value shall
14 be decided by the nurse practitioner committee and the majority decision
15 of such committee shall be conclusive upon the parties as to the value
16 of the services rendered. The board or the chair may make an award not
17 in excess of the established fee schedules for any such bill or part
18 thereof which remains unpaid in the same manner as an award for bills
19 rendered under subdivisions one and three of section thirteen-g of this
20 article, and such award may be collected in like manner as an award of
21 compensation.
22 Where a nurse practitioner's bill has been determined to be due and
23 owing in accordance with the provisions of this section the board shall
24 include in the amount of the award interest of not more than one and
25 one-half percent per month payable to the nurse practitioner in accord-
26 ance with the rules and regulations promulgated by the board. The chair
27 shall assess the sum of fifty dollars against the employer for each such
28 award made by the board, which sum shall be paid into the state treas-
29 ury.
30 A nurse practitioner initiating an arbitration pursuant to this
31 section shall pay a fee, as determined by regulations promulgated by the
32 chair to be used to cover the costs related to the conduct of such arbi-
33 tration. Upon resolution in favor of such party, the amount due, based
34 upon the bill in dispute, shall be increased by the amount of the fee
35 paid by such party. Where a partial award is made, the amount due, based
36 upon the bill in dispute, shall be increased by a part of such fee.
37 6. Within the limits prescribed by the education law for nurse practi-
38 tioner care and treatment, the report or testimony of an authorized
39 nurse practitioner concerning the condition of an injured employee and
40 treatment thereof shall be deemed competent evidence and the profes-
41 sional opinion of the nurse practitioner as to causal relation and as to
42 required treatment shall be deemed competent but shall not be control-
43 ling. Nothing in this section shall be deemed to deprive any employer or
44 insurance carrier of any right to medical examination or presentation of
45 medical testimony now conferred by law.
46 7. The chair shall promulgate rules governing the procedure to be
47 followed by those rendering nurse practitioner care under this section,
48 which rules so far as practicable shall conform to the rules in effect
49 on the effective date of this section with reference to medical care
50 furnished to claimants in workers' compensation. In connection with the
51 promulgation of such rules the chair may consult the nurse practitioner
52 committee and may take into consideration the view of other interested
53 parties.
54 8. The chair shall appoint for and with jurisdiction in the entire
55 state of New York a single nurse practitioner committee composed of two
56 duly licensed physicians and three duly registered, licensed and certi-
S. 3908 4
1 fied nurse practitioners of the state of New York. One such nurse prac-
2 titioner shall be appointed upon the recommendation of the temporary
3 president of the senate and one such nurse practitioner shall be
4 appointed upon the recommendation of the speaker of the assembly. Each
5 member of such committee shall receive compensation on an annual basis
6 to be fixed by the chair within amounts appropriated therefor. One such
7 nurse practitioner member shall be designated by the chair as a chair of
8 the nurse practitioner committee. No member of such committee shall
9 render care under this section nor be employed or accept or participate
10 in any fee from any insurance company authorized to write workers'
11 compensation insurance in this state or from any self-insurer, whether
12 such employment or fee relates to a workers' compensation claim or
13 otherwise. The attorney general, upon request, shall advise and assist
14 such committee.
15 9. The nurse practitioner committee shall investigate, hear and make
16 findings with respect to all charges as to professional or other miscon-
17 duct of any authorized nurse practitioner as provided in this subdivi-
18 sion under rules and procedure to be prescribed by the chair and shall
19 report evidence of such misconduct, with their findings and recommenda-
20 tions with respect thereto, to the chair. The findings, decision and
21 recommendation of the nurse practitioner committee shall be advisory to
22 the chair only, and shall not be binding or conclusive upon him or her.
23 The chair shall remove from the list of nurse practitioners authorized
24 to render nurse practitioner care under this section the name of any
25 nurse practitioner who he or she shall find after reasonable investi-
26 gation is disqualified because such nurse practitioner:
27 (a) has been guilty of professional or other misconduct or incompe-
28 tence in connection with nurse practitioner services rendered under the
29 law;
30 (b) has exceeded the limits of his or her professional competence in
31 rendering nurse practitioner services under the law, or has made false
32 statements regarding his or her qualifications in his or her application
33 for authorization;
34 (c) has failed to submit in a timely, full and truthful manner nurse
35 practitioner reports of all his or her findings to the employer and
36 directly to the chair of the board within the time limits provided in
37 this section;
38 (d) has knowingly made a false statement or representation as to a
39 material fact in any medical report made pursuant to this chapter or in
40 testifying or otherwise providing information for the purposes of this
41 chapter;
42 (e) has solicited or has employed another to solicit for himself or
43 herself or for another professional treatment, examination or care of an
44 injured employee with any claim under this chapter;
45 (f) has refused to appear before or answer upon request of the chair,
46 board, nurse practitioner committee or any duly authorized officer of
47 the state, any legal question or produce any relevant book or paper
48 concerning his or her conduct under an authorization granted to him or
49 her under the law; or
50 (g) has directly or indirectly requested, received or participated in
51 the division, transference, assignment, rebating, splitting or refunding
52 of a fee for, or has directly or indirectly requested, received or prof-
53 ited by means of a credit or otherwise valuable consideration as a
54 commission, discount or gratuity, in connection with the treatment of a
55 workers' compensation claimant. Nothing contained in this paragraph
56 shall prohibit such nurse practitioners who practice with other nurse
S. 3908 5
1 practitioners or physicians as partners, in groups or as a professional
2 corporation, limited liability company, or limited liability partner-
3 ship, or as a university faculty practice corporation from pooling fees
4 and moneys received, either by the partnership, professional corpo-
5 ration, limited liability company, limited liability partnership or
6 group, nor shall the professionals constituting the partnership, profes-
7 sional corporation, limited liability company, limited liability part-
8 nership or group be prohibited from sharing, dividing or apportioning
9 the fees and moneys received by them or by the partnership, corporation,
10 limited liability company, limited liability partnership or group in
11 accordance with a partnership or other agreement; provided, however,
12 that nothing in the paragraph shall be construed to authorize the forma-
13 tion of a partnership, professional corporation, limited liability
14 company, or limited liability partnership not otherwise authorized by
15 law.
16 10. Any person who violates or attempts to violate, and any person who
17 aids another to violate or attempts to induce him or her to violate the
18 provisions of paragraph (g) of subdivision nine of this section shall be
19 guilty of a misdemeanor.
20 11. Nothing in this section shall be construed as limiting in any
21 respect the power or duty of the chair to investigate instances of
22 misconduct, either before or after investigation by the nurse practi-
23 tioner committee or to temporarily suspend the authorization of any
24 nurse practitioner that he or she may believe to be guilty of such
25 misconduct. The provisions of subdivision one of section thirteen-d of
26 this article shall be applicable as fully as if set forth in this
27 section.
28 12. Nothing in this section shall be construed as limiting in any
29 respect the authority of a nurse practitioner to deliver care and treat-
30 ment as authorized by article one hundred thirty-nine of the education
31 law, or to require that a nurse practitioner file an application for
32 authorization under this section.
33 § 2. Section 141 of the workers' compensation law, as amended by chap-
34 ter 6 of the laws of 2007, is amended to read as follows:
35 § 141. General powers and duties of the chair. The chair shall be the
36 administrative head of the workers' compensation board and shall exer-
37 cise the powers and perform the duties in relation to the administration
38 of this chapter heretofore vested in the commissioner of labor by chap-
39 ter fifty of the laws of nineteen hundred twenty-one, and acts amendato-
40 ry thereof, and by this chapter excepting article six thereof, and
41 except in so far as such powers and duties are vested by this chapter in
42 the workers' compensation board. The chair shall preside at all meetings
43 of the board and shall appoint all committees and panels of the board;
44 shall designate the times and places for the hearing of claims under
45 this chapter and shall perform all administrative functions of the board
46 as in this chapter set forth. The chair, in the name of the board, shall
47 enforce all the provisions of this chapter, and may make administrative
48 regulations and orders providing for the receipt, indexing and examining
49 of all notices, claims and reports, for the giving of notice of hearings
50 and of decisions, for certifying of records, for the fixing of the times
51 and places for the hearing of claims, and for providing for the conduct
52 of hearings and establishing of calendar practice to the extent not
53 inconsistent with the rules of the board. The chair shall issue and may
54 revoke certificates of authorization of physicians, chiropractors [and],
55 podiatrists and nurse practitioners as provided in sections thirteen-a,
56 thirteen-k [and] , thirteen-1 and thirteen-p of this chapter, and
S. 3908 6
1 licenses for medical bureaus and x-ray and other laboratories under the
2 provisions of section thirteen-c of this chapter, issue stop work orders
3 as provided in section one hundred forty-one-a of this article, and
4 shall have and exercise all powers not otherwise provided for herein in
5 relation to the administration of this chapter heretofore expressly
6 conferred upon the commissioner of labor by any of the provisions of
7 this chapter, or of the labor law. The chair, on behalf of the workers'
8 compensation board, shall enter into the agreement provided for in
9 section one hundred seventy-one-h of the tax law, and shall take such
10 other actions as may be necessary to carry out the agreement provided
11 for in such section for matching beneficiary records of workers' compen-
12 sation with information provided by employers to the state directory of
13 new hires for the purposes of verifying eligibility for such benefits
14 and for administering workers' compensation.
15 § 3. Subdivisions 1, 2 and 3 of section 217 of the workers' compen-
16 sation law, subdivision 1 as amended by chapter 167 of the laws of 1999,
17 and subdivisions 2 and 3 as amended by chapter 270 of the laws of 1990,
18 are amended to read as follows:
19 1. Written notice and proof of disability shall be furnished to the
20 employer by or on behalf of the employee claiming benefits or, in the
21 case of a claimant under section two hundred seven of this article, to
22 the chair, within thirty days after commencement of the period of disa-
23 bility. Additional proof shall be furnished thereafter from time to time
24 as the employer or carrier or chair may require but not more often than
25 once each week. Such proof shall include a statement of disability by
26 the employee's attending physician or attending podiatrist or attending
27 chiropractor or attending dentist or attending psychologist or attending
28 certified nurse midwife or attending nurse practitioner, or in the case
29 of an employee who adheres to the faith or teachings of any church or
30 denomination, and who in accordance with its creed, tenets or principles
31 depends for healing upon prayer through spiritual means alone in the
32 practice of religion, by an accredited practitioner, containing facts
33 and opinions as to such disability in compliance with regulations of the
34 chair. Failure to furnish notice or proof within the time and in the
35 manner above provided shall not invalidate the claim but no benefits
36 shall be required to be paid for any period more than two weeks prior to
37 the date on which the required proof is furnished unless it shall be
38 shown to the satisfaction of the chair not to have been reasonably
39 possible to furnish such notice or proof and that such notice or proof
40 was furnished as soon as possible; provided, however, that no benefits
41 shall be paid unless the required proof of disability is furnished with-
42 in twenty-six weeks after commencement of the period of disability. No
43 limitation of time provided in this section shall run as against any
44 person who is mentally incompetent, or physically incapable of providing
45 such notice as a result of a serious medical condition, or a minor so
46 long as such person has no guardian of the person [and/] or property.
47 2. An employee claiming benefits shall, as requested by the employer
48 or carrier, submit himself or herself at intervals, but not more than
49 once a week, for examination by a physician or podiatrist or chiroprac-
50 tor or dentist or psychologist or certified nurse midwife or nurse prac-
51 titioner designated by the employer or carrier. All such examinations
52 shall be without cost to the employee and shall be held at a reasonable
53 time and place.
54 3. The chair may direct the claimant to submit to examination by a
55 physician or podiatrist or chiropractor or dentist or psychologist or
56 nurse practitioner designated by him or her in any case in which the
S. 3908 7
1 claim to disability benefits is contested and in claims arising under
2 section two hundred seven of this article, and in other cases as the
3 chair or board may require.
4 § 4. Subdivision 2 of section 205 of the workers' compensation law, as
5 amended by chapter 270 of the laws of 1990, is amended to read as
6 follows:
7 2. for any period of disability during which an employee is not under
8 the care of a duly licensed physician or with respect to disability
9 resulting from a condition of the foot which may lawfully be treated by
10 a duly registered and licensed podiatrist of the state of New York or
11 with respect to a disability resulting from a condition which may
12 lawfully be treated by a duly registered and licensed chiropractor of
13 the state of New York or with respect to a disability resulting from a
14 condition which may lawfully be treated by a duly licensed dentist of
15 the state of New York or with respect to a disability resulting from a
16 condition which may lawfully be treated by a duly registered and
17 licensed psychologist of the state of New York or with respect to a
18 disability resulting from a condition which may lawfully be treated by a
19 duly certified nurse midwife or with respect to a disability resulting
20 from a condition which may lawfully be treated by a duly registered,
21 licensed and certified nurse practitioner, for any period of such disa-
22 bility during which an employee is neither under the care of a physician
23 nor a podiatrist, nor a chiropractor, nor a dentist, nor a psychologist,
24 nor a certified nurse midwife, nor a nurse practitioner; and for any
25 period of disability during which an employee who adheres to the faith
26 or teachings of any church or denomination and who in accordance with
27 its creed, tenets or principles depends for healing upon prayer through
28 spiritual means alone in the practice of religion, is not under the care
29 of a practitioner duly accredited by the church or denomination, and
30 provided such employee shall submit to all physical examinations as
31 required by this chapter.
32 § 5. Subdivision 5 of section 220 of the workers' compensation law, as
33 amended by chapter 940 of the laws of 1973, is amended to read as
34 follows:
35 5. In addition to other penalties [herein] provided in this section,
36 the [chairman] chair shall remove from the list of physicians authorized
37 to render medical care under the provisions of articles one to eight,
38 inclusive, of this chapter and from the list of podiatrists authorized
39 to render podiatric care under section thirteen-k of this chapter, and
40 from the list of chiropractors authorized to render chiropractic care
41 under section thirteen-l of this chapter, and from the list of nurse
42 practitioners authorized to render nurse practitioner care under section
43 thirteen-p of this chapter the name of any physician or podiatrist or
44 chiropractor or nurse practitioner whom he or she shall find, after
45 reasonable investigation, has submitted to the employer or carrier or
46 [chairman] chair in connection with any claim for disability benefits
47 under this article, a statement of disability that is not truthful and
48 complete.
49 § 6. Section 232 of the workers' compensation law, as amended by chap-
50 ter 270 of the laws of 1990, is amended to read as follows:
51 § 232. Fees of physicians, podiatrists, chiropractors, dentists, nurse
52 practitioners and psychologists. Whenever his or her attendance at a
53 hearing before the board or its referees is required, the attending
54 physician or attending podiatrist or attending chiropractor or attending
55 dentist or attending psychologist or attending certified nurse midwife
56 or attending nurse practitioner of the disabled employee, except such
S. 3908 8
1 physicians as are disqualified from testifying pursuant to subdivision
2 one of section thirteen-b, or section nineteen-a of this chapter, and
3 except such podiatrists as are disqualified from testifying under the
4 provisions of section thirteen-k of this chapter, and except such chiro-
5 practors as are disqualified from testifying under the provisions of
6 section thirteen-l of this chapter, and except such psychologists as are
7 disqualified from testifying under the provisions of section thirteen-m
8 of this chapter, and except such nurse practitioners as are disqualified
9 from testifying under the provisions of section thirteen-p of this chap-
10 ter, shall be entitled to receive a fee from the carrier or the fund
11 established under section two hundred fourteen of this article, in an
12 amount as directed and fixed by the board, or its referees, and such fee
13 shall be in addition to any witness fee.
14 § 7. This act shall take effect immediately and shall expire December
15 31, 2014 when upon such date the provisions of this act shall be deemed
16 repealed.
